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16. Children's involvement in family law proceedings

The best interests principle

Introduction

16.6 The fundamental principle in international and Australian law concerning
children is that all decisions made and actions taken should be in their 'best
interests'. CROC requires that

in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.[7]

16.7 The Family Law Act requires the court to have regard to 'the need to
protect the rights of children and to promote their welfare' in any matter with
which it deals under the Act.[8]
The best interests of the child is to be the paramount consideration.[9]
The aim of the Family Law Act with respect to children is

...to ensure that children receive adequate and proper
parenting to help them achieve their full potential, and to ensure that parents
fulfil their duties, and meet their responsibilities, concerning the care,
welfare and development of their children.[10]

The best interests principle as the basis of decisions

16.8 In Australia the meaning of the term 'best interests of the child' has
been explored most comprehensively in the family law area. The Family Law Act
lists the factors that the court must consider in determining the child's best
interests, beginning with any wishes expressed by the child.[11]
Care and protection legislation in most States and Territories also requires
consideration of the child's best interests.[12]

16.9 The principle has been criticised on the basis that it lacks certainty.[13]

Deciding what is best for a child poses a question no less
ultimate than the purposes and values of life itself. Should the judge
primarily be concerned with the child's happiness? Or with the child's
spiritual and religious training? Should the judge be concerned with the
economic productivity of the child when he grows up?...[I]f the judge looks to
society at large, he finds neither a clear consensus as to the best child
rearing strategies nor an appropriate hierarchy of ultimate values.[14]

...the diversity of values and circumstances which would
affect decisions...precludes any realistic expectation that decisions would not
be made according to the idiosyncratic opinion of individual judges — that, in
other words, using a 'principle' like 'best interests' in the exercise of a
welfare power would mean there are no rules at all.[15]

It has been suggested that, even
where legislation provides guidance as to the factors to consider in making a
decision about a child's best interests, that guidance remains normative rather
than objective.[16]
It is argued that the best interests principle '...has been used to affect a
wide variety of preferences about children's custody'.[17]

16.10 However, submissions to the Inquiry generally considered the principle
to be a useful basis for decision making concerning children.[18]
It is said to ensure that children's interests are preferred over those of any
other party, an important consideration because children's participation in
proceedings is so limited.[19]
It also allows each matter to be considered and determined on its own
particular merits and allows changing community expectations to be taken into
account in determining cases.

The scope of the best interests principle

16.11 The Family Law Act specifically requires the court to regard the best
interests of the child as the paramount consideration when making parenting orders[20]
and some other orders.[21]
The court must consider a number of matters in determining the best interests
of the child in those cases.[22]
In deciding whether to make consent orders the court may, but need not,
consider those matters.[23]

16.12 The scope of the current provisions requiring the consideration of the
best interests of the child may be too narrow. Before the Family Law Reform
Act 1995 (Cth) came into force a single over-arching provision required the
consideration of the welfare of the child in all proceedings with respect to
the child.[24]
This requirement had been interpreted to apply to procedural as well as
substantive issues.[25]
Justice Chisholm has suggested that the ability of the court to consider the
best interests of the child in determining procedural issues may be in doubt as
a result of the 1995 amendments.[26]
He considered that '...the purpose of this...change...is far from clear'.[27]

It may have been intended to give more force to the principle
by repetition [in the separate sections rather than in a global statement]. But
although repetition is a feature of the Act, it seems obvious that a single
over-arching statement would be stronger and more compelling...Another possible
explanation is that it may have been intended to limit the operation of the
principle.[28]

16.13 In addition, the current provisions may not go far enough to establish,
consistent with CROC, that the child's best interests should be at least a
primary consideration in all decisions concerning them.[29]
The High Court has held that matters 'concerning children' should be
interpreted very broadly.[30]
Therefore, greater scope should be given to the consideration of children's
best interests under the Family Law Act.

16.14 Both these concerns can be addressed by including in the Family Law Act
a requirement that in all actions of the court concerning children, the best
interests of the child shall be a primary consideration. This would allow a
balancing of considerations where the child's best interests need not be
considered paramount but merely one of a number of considerations. It would
address the concern that the emphasis given to children's best interests may be
read down following the 1995 amendments. It would also more appropriately
reflect CROC's requirements.[31]
Such a provision would not interfere with the requirement in the Family Law Act
that a child's interests be the paramount consideration in determining
applications that most directly affect the child such as applications for
parenting orders.[32]
This provision should not apply to matters relating to the maintenance of
children.[33]
The considerations to be taken into account in maintenance deter-minations are,
appropriately, expressly limited under the Act.[34]
For these reasons, we recommend that in all actions concerning children the
child's best interests should be a primary consideration unless the legislation
expressly states otherwise.

Recommendation 135 In all actions of a court under the Family Law Act concerning
children, unless the Act expressly states otherwise, the best interests of the
child should be a primary consideration.

Implementation. Section 43 of
the Family Law Act should be amended to reflect the provisions of article 3(1)
of CROC in relation to all areas of the Act not subject to the present best
interests requirement.

Assessing the best interests of the child

16.15 The Family Law Act lists the factors the court must consider in
determining a child's best interests as

any wishes expressed by the child and any factors (such as the
child's maturity or level of understanding) that the court thinks are relevant
to the weight it should give to the child's wishes

the nature of the child's relationship with each parent and other
persons

the likely effect of any change in the child's circumstances
including the likely effect on the child of any separation from either of his
or her parents or any other person with whom he or she has been living

the practical difficulty and expense of a child having contact
with a parent and whether that difficulty or expense will substantially affect
the child's right to maintain personal relations and direct contact with both
parents on a regular basis

the capacity of each parent, or of any other person, to provide
for the needs of the child, including emotional and intellectual needs

the child's maturity, sex, background (including any need to
maintain a connection with the lifestyle, culture and traditions of Aboriginal
peoples or Torres Strait Islanders) and any other characteristics of the child
that the court thinks relevant

the need to protect the child from physical or psychological harm
caused, or that may be caused, by being subjected or exposed to abuse,
ill-treatment, violence or other behaviour or by being directly or indirectly
exposed to abuse, ill-treatment, violence or other behaviour that is directed
towards, or may affect, another person

the attitude to the child, and to the responsibilities of
parenthood, demonstrated by each of the child's parents

any family violence involving the child or a member of the
child's family

any family violence order that applies to the child or a member
of the child's family

whether it would be preferable to make the order that would be
least likely to lead to the institution of further proceedings in relation to
the child

16.16 Submissions to the Inquiry generally approved these factors.[36]
However the wording of the factors indicates that they were intended only for
considering issues related to parenting orders. The list should be broadened to
be relevant to all types of proceedings in which the best interests of the
child are the paramount or a primary consideration.[37]
Further guidance could be of particular use in relation to deliberations in the
court's welfare jurisdiction.[38]

Recommendation 136 The factors relevant to a consideration of the best interests of the
child, enumerated in the Family Law Act, should also include factors relevant
to all areas of decision-making to which the best interests principle applies,
and in particular to location and recovery of children, adoption and the
welfare of children.

Implementation. Section 68F(2)
of the Family Law Act should be redrafted accordingly.

[18]
eg Feminist Lawyers IP Submission 177. However, there was some
limited disagreement with the proposition: eg Parents Without Rights IP
Submission 32 suggested that '...the judiciary and the legal professions
are not qualified to decide what is in the best interests of the child. We
believe that only parents, with guidance from properly trained counsellors, are
the best ones to make the decision as to what is in the best interests of their
own children'.

[19]
This issue is discussed in more detail at paras 16.18-22, 16.27-61.

[21]
ie location orders (s 67L), recovery orders (s 67V), orders relating
to the welfare of the child (s 67ZC(2)) and some orders relating to adoption (s
60G(2)) although the Family Court's jurisdiction is limited in this regard.
Adoption remains largely a matter of State and Territory jurisdiction. The Adoption
of Children Act 1965 (NSW) has recently been the subject of review by the
NSWLRC Report 81 Review of the Adoption of Children Act 1965 (NSW)
NSWLRC Sydney 1997.

[22]
These are outlined in Family Court Act s 68F(2). See also para 16.15.

[23]
Family Law Act s 68F(3). The court may also register a parenting plan,
discussed in detail at paras 15.48-54, when it considers it appropriate to do
so in the best interests of the child: s 63E(3). In those cases, the court may,
but need not, consider the matters outlined in s 68F(2) of the Act.

[24]
Family Law Act s 64(1). The Family Law Reform Act 1995 (Cth)
replaced the term 'welfare' with the phrase 'best interests'. It was not
intended to change the meaning of the requirement: see Hansard (H of R) 30 May
1991, 4455.

[25]
See R Chisholm 'Assessing the impact of the Family Law Reform Act
1995' (1996) 10 Australian Journal of Family Law 183.